Third Department, September, 1909.

[Vol. 134.

in the fact that this judgment is a conclusive adjudication in any subsequent action brought by relator to recover the fees of the office.

Nor can I agree with the holding of the prevailing opinion that this judgment is the only one authorized by the pleadings. Under the statute the relator was not entitled to this office until he had qualified by taking the oath of office and given a bond. The courts are frequently applied to to compel by mandamus the filing of a bond or of some other paper to qualify a claimant to bring an action to contest the title to an office. The complaint contained no allegation of any qualification, but did allege that the defendant was at the time of the election the duly qualified county treasurer, and that he still retained the office, claiming the right to do so, and alleged that he had unlawfully usurped and intruded into the office. The answer admitted that at the time of the election the defendant was lawfully holding the office, and denied that he was unlawfully usurping or had unlawfully intruded into the office. If this pleading had stopped there, is there any question that under this pleading he was entitled to claim that he was holding office by virtue of his right under section 5 of the Public Officers Law above quoted? Is a party after having shown the facts entitling him to relief bound to apprise his adversary of his argument by which he claims that those facts entitle him to the relief which he asks? It would hardly seem that the defendant was bound to deny the due qualification of the relator which had not been alleged in the complaint. It is true that the defendant further alleged his due election, but if I understand the rule of pleading, if all the facts are alleged which would entitle the party to legal relief and that relief be demanded, it will be granted to him by the court, although other claims are made which are untenable. If the rule stated in the opinion of Mr. Justice KELLOGG is to hold, then a party will be compelled in his pleading to disclose to his adversary not only the facts which constitute his defense, but his legal deductions from those facts. This is not what the Code requires of a pleading and I find no authority for the court to add anything to the Code requirement. Under the pleadings and proofs defendant was lawfully holding over. How then is it possible that the judgment can rightfully adjudicate that he has usurped and intruded into the office? The

App. Div.]

Third Department, September, 1909.

law tolerates no paradoxes. In my opinion the judgment should be modified so as to declare simply an election of the relator and his right to the office upon due qualification and as so modified affirmed, with costs of this appeal, however, to the appellant, who should prevail upon the only contention made.

Judgment affirmed, with costs.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. TINA B. LASHER, Respondent, v. THE CITY OF NEW YORK and Others, Appellants.

Third Department, September 15, 1909.

Constitutional law – privileges and immunities of citizens-municipal corporations - act authorizing acquisition of lands for additional water supply-said act not in conflict with Federal Constitution estoppel.

"The privileges and immunities" of citizens of the United States that cannot be abridged by a State (U. S. Const. 14th amendt. § 1) are the privileges and immunities arising under the Federal Constitution and not those arising under that of the State.

Section 42 of chapter 724 of the Laws of 1905, as amended by chapter 314 of the Laws of 1906, which provides that the owner of lands not taken by virtue of said act for the water supply of the city of New York, which are directly or indirectly decreased in value by reason of the acquisition of other lands shall have compensation for such decrease in value, is not in conflict with section 1 of the 14th amendment of the Federal Constitution. This, because the right of eminent domain forms no part of the body of political and civil rights which are protected and secured by that Constitution.

No municipality or other corporation has an inherent right to take lands by eminent domain, that being an attribute of sovereignty belonging to the State, and the Federal government has no right to interfere with the conditions which the State may impose upon the exercise of that power. The only restrictions put upon the Legislature in the exercise of the power of eminent domain are that the use must be public and compensation be given. When the compensation is not made by the statute, it must be ascertained by a jury or by not less than three commissioners appointed by a court of record.

As the Legislature in delegating its power of eminent domain is not bound to act uniformly or in accordance with any particular rule, it may impose any condition on the grant of the power, whether precedent or subsequent, which it believes to be equitable. Hence, said statute giving to owners of lands which

Third Department, September, 1909.

[Vol. 134.

are depreciated in value by the construction of an additional water supply for the city of New York a right to compensation, does not violate the Constitution.

In any event, the city of New York, having voluntarily accepted the right to exercise eminent domain under said statute, is bound by the conditions therein imposed and cannot attack its constitutionality.

APPEAL by the defendants, The City of New York and others, from an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Ulster on the 17th day of February, 1909, granting the relator's motion for a peremptory writ of mandamus requiring the defendants to forthwith provide for the determination of the damages to the relator's business.

The relator's claim is based upon the provisions of section 42 of chapter 724 of the Laws of 1905, entitled: "An act to provide for an additional supply of pure and wholesome water for the city of New York; and for the acquisition of lands or interest therein, and for the construction of the necessary reservoirs, dams, aqueducts, filters and other appurtenances for that purpose; and for the appointment of a commission with the powers and duties necessary and proper to attain these objects," as amended by chapter 314 of the Laws of 1906. So much of the section as is material is as follows: "The owner of any real estate not taken by virtue of this act and chapter seven hundred and twenty-three of the laws of nineteen hundred and five or of any established business on the first day of June, nineteen hundred and five, and situate in the counties of Ulster, Albany or Greene, directly or indirectly decreased in value by reason of the acquiring of land by the city of New York for an additional water supply, or by reason of the execution of any plans for such additional water supply by the city of New York under the provisions of this act and chapter seven hundred and twentythree of the laws of nineteen hundred and five, their heirs, assigns or personal representatives shall have a right to damages for such decrease in value. The board of water supply of the city of New York may agree with such person as to the amount of such damages, and if such agreement cannot be made, such damages, if any, shall be determined in the manner herein provided for the ascertaining and determining the value of real estate taken under the

Third Department, September, 1909.

App. Div.] provisions of this act, and the commissioners shall not be limited in the reception of evidence to the rules regulating the proof of direct damages. And the amount of such damages so agreed upon as aforesaid, or so determined as aforesaid, shall be payable and collectible in the same manner as is herein provided in the case of awards made through the confirmation of a report of commissioners of appraisal."

On the 1st day of June, 1905, and for more than seven years prior thereto, the relator owned an established business on land in the town of Olive, Ulster county, the land being parcel No. 64 in section No. 2, as laid out and numbered upon the final map or plan of the proposed site of the Ashokan reservoir. Commissioners of appraisal were appointed April 17, 1907, in proceedings begun by the corporation counsel of the city of New York, pursuant to the provisions of chapter 724 of the Laws of 1905, to acquire 8,000 acres of land for the construction of the reservoir. On the 5th day of August, 1907, the relator presented to the commissioners a verified claim for damages, and on that day appeared before the commissioners and offered evidence in support of her claim. The commissioners allowed her to testify fully as to the purposes for which the property was used, but refused to hear evidence concerning the damages to her business. The report of the commissioners was filed February 21, 1908, in which it was found and determined that Edwin B. Lasher, Alma O. Lasher and Ora C. Lasher, subject to the dower right of the relator, were the owners of parcel No. 64, and that the amount which ought to be paid to the owners and persons interested therein for the damages sustained, or which may be sustained, by them by reason of the acquisition of the fee for the purposes indicated in chapter 724, was the sum of $6,500, "the commission having taken into consideration the purposes for which the property has been devoted."

In the petition on which the motion was founded it was also stated: "That the said city, its Board of Water Supply, or its representatives entered upon and took possession of the lands upon which the business of your petitioner was conducted,

*

* *

and on

or about the fifteenth day of May, 1908, compelled your petitioner to leave her place of business and the section in which it was conducted, and to give up and abandon the same, and the said city, its

Third Department, September, 1909.

[Vol. 134.

Board of Water Supply or its representatives continue to maintain possession of such premises, as well as a considerable number of parcels it has taken possession of in such proceedings.'

It also appeared that on the 15th day of May, 1908, the relator filed a claim for damages to her business with the board of water supply of the city of New York, and that she was unable to agree with the board as to the amount of damages to be paid.

John J. Linson, Howard Chipp and Francis Key Pendleton, for the appellant.

Harrison T. Slosson and Arthur A. Brown, for the respondent.

SEWELL, J.:

The appellant's contention is that section 42 of chapter 724 of the Laws of 1905, as amended by chapter 314 of the Laws of 1906, conflicts with the 14th amendment of the United States Constitution. The privileges and immunities referred to in section 1 of the amendment are those only which arise under the Constitution of the United States, and not those which arise under that of the State. But, passing this point, and assuming that the section in question is included in the words "any law," there is then no ground for the claim that it is in conflict with the amendment and incapable of enforcement. The right of eminent domain forms no part of that body of political and civil rights which are protected and secured by the Federal Constitution. No municipality or other corporation has an inherent right to the power. It is an attribute of sovereignty. It belongs to the State, and with the conditions the State may impose for the gift or grant the United States, a separate sovereignty, has no right to interfere. There is no restraint upon the Legislature in delegating this power, save the provision in the Constitution of the State (Art. 1, §§ 6, 7) that the use must be public, compensation must be given, and when the compensation is not made by the State, it must be ascertained by a jury, or by not less than three commissioners appointed by a court of record. (Brooklyn Park Comrs. v. Armstrong, 45 N. Y. 234; Matter of Union E. R. R. Co. of Brooklyn, 112 id. 61; Mott v. Eno, 181 id. 346.)